State v. Brown

Mere conversation becomes a seizure “only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse” and the “pivotal factor is whether the officer, even if making inquiries [that] a private citizen would not, has otherwise conducted himself in a manner that would be perceived as nonoffensive contact if it had occurred between two ordinary citizens.” State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991).

Defendant appealed a conviction for one count of unlawful possession of methamphetamine. Defendant assigned error to the trial court’s denial of her motion to suppress. On appeal, Defendant argued that the evidence found during an officer’s search of her car was the product of an unlawful stop. In response, the State contended that Defendant was not stopped, so no unlawful search occurred. Mere conversation becomes a seizure “only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse” and the “pivotal factor is whether the officer, even if making inquiries [that] a private citizen would not have otherwise conducted himself in a manner that would be perceived as nonoffensive contact if it had occurred between two ordinary citizens.” State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991). The Court of Appeals held that a seizure occurred because the officer engaged in conduct beyond the ordinary social intercourse by following the Defendant for an extended period, asking questions and hinting at illegal conduct, and asking about illegal drug use and items in the car. Reversed and remanded.